A Srimurugan said the AG, who is also the public prosecutor, could rely on the Penal Code or the Communications and Multimedia Act to file charges against those accused of spreading such false news.
“Existing laws passed by Parliament should not be sidelined just because an ordinance to check the spread of false news has been enacted,” he said.
Srimurugan said this in response to the hefty punishment imposed under the ordinance against those who create, publish or distribute fake news. Such offenders may be fined a maximum of RM100,000, jailed up to three years or both, if found guilty.
Those who pay for the creation of such fake news will face harsher punishment, with fines of up to RM500,000 or a jail term of six years, or both.
The Emergency (Essential Powers) (No. 2) Ordinance 2021, which takes effect today, defines “fake news” as news or information that “is or are wholly or partly false relating to Covid-19 or the proclamation of emergency”.
In addition, the courts may order those convicted of an offence to apologise to those affected by their actions. Failure to do so may result in another fine of up to RM50,000, a jail term of under a year, or both.
Srimurugan said Section 233(1) a) of the Communications and Multimedia Act, that carries a fine of up to RM50,000 or a jail term of up to one year or both, could be invoked against offenders for improper use of network facilities.
He said the prosecution could also rely on several provisions in the Penal Code like Section 505 for making statements conducive to public mischief. This provision carries a jail term of up to two years or a fine, or both.
He said Section 114(A) of the Evidence Act, which came into force in 2012, shifted the burden on an accused person as he or she was presumed to publish or republish false news.
“This is where Malaysiakini ran foul of the law for carrying readers’ comments, which was a contempt of court,” he said.
Srimurugan said the Emergency (Essential Powers) (No. 2) Ordinance 2021 was a deterrent for offenders causing panic among the public.
Meanwhile, former deputy public prosecutor Najib Zakaria said normally, police would propose under which law a suspect should be charged if there was more than one legislation for an offence and the penalty varied.
“But it is for the AG or his office to make the call as they are the ones presenting evidence in court to prove their case,” said Najib, who is now in private practice.
He said Article 145(3) of the constitution and case laws empowered the AG to use his discretion.
Najib also reminded that all ordinances promulgated during the emergency remained until Parliament revoked them.
“For example, under former prime minister Najib Razak, Parliament repealed all emergency proclamations, ordinances and the Internal Security Act 1960,” he said.